V10 N3

Section Review

409A forces a rethinking of the traditional employment agreement

By Patricia Ann Metzer

The American Jobs Creation Act of 2004 added a new provision to
the Internal Revenue Code dealing expressly with the tax treatment of
nonqualified deferred compensation plans. The prior rules were a patchwork of
common law and statutory provisions, all as interpreted and applied by the
government, taxpayers and the courts.

New code section 409A evidences Congress’
concern with the state of the law before 2004. It broadly applies to any plan
that provides for the deferral of compensation. Generally speaking, the new rules
include: (1) qualification requirements that must be met in order to avoid
adverse tax consequences, (2) special funding rules that will trigger automatic
current taxation if they are not met, and (3) reporting requirements.

If a nonqualified deferred compensation plan
does not satisfy the statutory qualification requirements, a service provider
will be taxed currently on all compensation deferred under the plan to the
extent (a) it is not subject to a substantial risk of forfeiture, and (b) it
was not previously included in income. There is also an excise tax, and there
may be a deferral charge. First, the income tax imposed on currently taxable
deferred compensation is increased by 20 percent. Second, interest at the
underpayment rate plus 1 percent will be imposed on the underpayments that
would have occurred had the deferred compensation been includable in the
employee’s gross income for the taxable year in which it was first deferred or,
if later, the year in which it was no longer subject to a substantial risk of
forfeiture.

To avoid these negative tax consequences, each
arrangement must, on a per‑participant basis, satisfy three specific rules. First,
distributions may not occur earlier than one of six specified times. Second,
the time and form of payment must be fixed when the compensation is deferred.
Finally, if a service provider has an elective right to defer benefits,
specific statutory criteria relative to deferral decisions apply.

Code Section 409A has added a new dimension to
the drafting of employment agreements. Some guidelines for drafters under the
new regime are set forth below.

Guideline No. 1: Be on the lookout for any benefits that may involve a
deferral of compensation.

A deferral of compensation will exist if an
employee has a legally binding right to remuneration in Year 1 that, under the
provisions of his or her work arrangement, can be paid in Year 2 or in any
later year.

If an employer can unilaterally eliminate a
benefit, the employee eligible for that benefit will not have a legally binding
right to it. On the other hand, if the benefit is simply forfeitable as a
result of events that may or may not occur in the future, the employee will
nonetheless hold a legally binding right.

Guideline No. 2: Become familiar with deferral arrangements
that are clearly outside of the scope of 409A, no matter what.

Some compensation arrangements fall outside of
the scope of code section 409A even though they involve an element of deferral.
For drafters of employment agreements, there are two particularly useful
categories of excluded items.

First, all qualified employer plans are exempt.
Certain welfare benefit arrangements are also exempt. These include the perks
that employees expect to receive — such as vacation time, sick leave,
compensatory time, disability pay and death benefits, as well as health
insurance benefits that are excludable from gross income under other code
provisions.

Guideline No. 3: Inquire about an employee’s stock rights,
which may not always be safe from attack under 409A.

The government has also helpfully excluded a
number of stock rights from coverage under code section 409A, although not all
stock rights are safe.

Incentive stock options

So-called incentive stock options and options
granted under a code section 423 employee stock purchase plan do not constitute
deferred compensation. However, an incentive stock option that later becomes a
non-statutory stock option could then become subject to code section 409A.

Non-statutory stock options

Code Section 409A applies to some, but not
all, non-statutory stock options. Exempt non-statutory options can be provided
only with respect to so-called service recipient stock. This is essentially
common stock of the employer or of any corporation that controls the employer.
In addition, an exempt non-statutory option must be granted at a price equal to
the fair market value of the shares subject to the option on the date of grant.
An independent outside appraisal will normally establish the fair market value
of non‑publicly
traded stock, but most non-publicly traded companies are reluctant to pay for
periodic appraisals of their common stock.

Stock appreciation rights

Using stock appreciation rights (SARs) to
circumvent the difficulties presented by non‑statutory options will not work. SARs
are analyzed under the same principles that apply to non-statutory options.

Restricted stock

Finally, in most cases, code section 409A does
not impact restricted stock. The restricted stock need not be vested when it is
issued. It is important to keep in mind, however, that restricted stock units
are not the same as restricted stock. The regulations state that a plan under
which an employee is given a legally binding right to receive property in a
later year that will, at that time, be substantially vested may be a plan to
which the provisions of code section 409A apply.

Guideline No. 4:Know how to keep separation pay off the list of
compensation subject to 409A.

Involuntary separation
pay

Separation pay is deferred compensation to which
the provisions of code section 409A may apply. However, the regulations provide
that involuntary separation pay (not also due if an employee voluntarily quits
without cause) is not subject to code section 409A. An involuntary separation
may occur if:

An employer fails to renew an employee’s
employment contract when the contract expires, and the circumstances show that
the employee was willing and able to enter into a new contract.

The separation occurs for “good reason” —
either (a) applying the safe harbor definition in the regulations, or (b) on
the basis of all relevant facts and circumstances.

Under the safe harbor definition of good reason
in the regulations, the separation from service must occur during a period not
to exceed two years after the initial existence of one or more of six
enumerated conditions that arise without an employee’s consent (such as a
material diminution in his or her base compensation, or in his or her duties or
responsibilities). In addition, the employee must give his or her employer
notice of the relevant conditions and an opportunity to remedy the problem
(both within the time periods set forth in the regulations). Finally, the
separation pay must be identical to that due in the case of an actual
involuntary separation from service (taking into account the amount, time and
form of payment).

Once the involuntary nature of a separation has
been determined to exist, two other regulatory conditions must be addressed.
First, there is a ceiling on the amount exempt from code section 409A (although
being over the ceiling does not disqualify the ceiling amount). The limit is
twice the lesser of two amounts:

the maximum compensation that may be taken
into account under a qualified retirement plan for the year in which the
separation from service occurs (for 2008, the limit is $230,000), or, if
greater,

the employee’s annualized compensation,
based upon his or her annual rate of pay for services provided in the year
before the year in which the separation from service occurs (an employees
“annual rate of pay” may possibly include a regular bonus).

In addition, the involuntary separation pay must
be paid to the employee no later than his or her second taxable year after that
in which the separation from service occurs.

Other special separation payments

Other special forms of separation pay may fall
outside of the scope of code section 409A, without regard to the circumstances
under which they are paid. The following benefits will not be treated as
nonqualified deferred compensation, even if they are paid when an employee
voluntarily separates from service:

Reasonable outplacement expenses, reasonable
moving expenses directly related to the termination of services, and deductible
employee business expenses — if they are due by the end of the employee’s
second taxable year after that in which he or she separates from service.

Reimbursements for medical expenses not
covered by health insurance, for a period of time co‑terminus with the end
of COBRA continuation coverage following the employee’s termination of
employment.

On an elective basis, payments not in excess
of the code section 401(k) elective deferral limit for the year in which the
separation from service occurs (now $15,500).

Guideline No. 5: Become familiar with the short-term
deferral rule that can take a lot of benefits off the table, such as bonuses
and separation pay not otherwise excluded.

By regulation, short-term deferrals are also
exempt from code section 409A. When determining the relevance of this
exception, it is important to focus on two things — (a) when benefits are no
longer subject to a substantial risk of forfeiture, and (b) when they are to be
paid. Compensation will be deemed not to have been deferred if an employee actually
or constructively receives it before the last day of a defined two-and-a-half
month period. The relevant two-and-a-half month period ends on the 15th
day of the third month following the end of the employee’s (or, if later, the
employer’s) first taxable year in which the right to the payment is no longer
subject to a substantial risk of forfeiture.

The short-term deferral rule will not apply if a
payment may, under the circumstances, be made or completed sometime after the
end of the applicable two-and-a-half month period under the terms of the plan
as written. On the other hand, if there is no written provision dealing with
when a payment is to be made, a payment actually made within the two-and-a-half
month period will not be treated as deferred compensation. However, it is
recommended that drafters of employment agreements not rely upon this helpful
regulatory provision.

The essential problem with the short-term
deferral rule is that it requires payment within a certain period of time after
benefits cease to be subject to a substantial risk of forfeiture. In many
cases, an employee may be entitled to benefits under his or her employment agreement
with respect to which there is no substantial risk of forfeiture, but which are
due at some point in the future — such as, upon separation of service for any
reason. Under these circumstances, the short-term deferral provision will not
apply.

Guideline No. 6: If all else fails, know how to satisfy the
requirements of 409A.

(a) Make sure you have a good payment trigger.

Under code section 409A, benefits to which the
provision applies may be paid only when certain events occur. Four of the enumerated
events are likely to be relevant to employment agreements. Death is one of
them, as is disability. The definition of disability in the statute and the
regulations is a strict one. An employee is considered to be disabled if (i) he
or she is unable to engage in any substantial gainful activity as a result of
any medically determinable physical or mental impairment that can be expected
to end in death or to continue for at least 12 months, or (ii) because of such
an impairment, the employee is receiving income replacement benefits for not
less than three months under his or her employer’s accident and health plan.
The regulations permit a plan to deem an employee to be disabled if he or she
has been determined to be totally disabled by the Social Security Administration.

Section 409A compliant payments may also be made
upon a change in the ownership or effective control of the employer, or in the
ownership of a substantial portion of the employer’s assets. Important to note
here is that an employer may wish to define a change of control differently
from the way in which it has been defined in the regulations. This effectively
means that the employer’s definition may be used for purposes of determining
when benefits vest, but not when they can be paid.

In most situations, the most important payment
event is “separation from service.” The regulations state that an employee separates
from service if he or she dies, retires or otherwise has a termination of
employment. For drafters of employment agreements, two aspects of this
definition are important to bear in mind:

The government takes the position that an
employment relationship will remain intact while an employee is on a bona fide
leave of absence of up to six months, or longer if the employee’s reemployment
rights are protected by statute or contract.

A termination of employment is irrebuttably
presumed when an employee’s bona fide level of services permanently falls to no
more than 20 percent of the average performed by him or her over the prior 36
months.

To preclude inadvertent terminations of
employment within the meaning of the regulations, employment agreements might,
for example, preclude an employer from significantly reducing an employee’s
hours of service without his or her consent.

(b) Make sure you have a good payment method.

The regulations include a lengthy discussion of
the ways in which benefits to which code section 409A applies may be paid. As a
general matter, a plan may provide only one time and form of payment upon the
occurrence of one of the enumerated permissible payment events. For example,
benefits might be paid in the form of a lump sum upon an employee’s separation
from service, and in a different manner in the event of a change in the
ownership or effective control of his or her employer.

Also, under limited circumstances, the
government permits a different time and form of payment when a separation from
service occurs (a) during a period of up to two years following a change in
control, (b) before or after a specified date, such as attainment of age 65, or
(c) before or after both a specified date and a specified period of service
under a nondiscretionary formula.

Separation from service is defined to include
disability and death. Thus, it appears that benefits due on account of disability
or death must be paid in the same manner as benefits due upon separation of
service for any other reason. The wording of the regulations leads one to this
conclusion, notwithstanding its apparent inconsistency with the statute’s
treatment of death and disability as separate payment events.

The regulations provide that when a payment
event occurs, a plan can designate, as the payment date, (a) the date of the
event, or (b) another payment date objectively determinable and
nondiscretionary at the time the payment event occurs.

Methods of payment may also vary. Payments may
be scheduled, or may commence or occur in a designated taxable year of the
employee. Also, payments may occur during a designated period, so long as (a)
it begins and ends within one taxable year of the employee, or does not exceed
90 days, and (b) the employee cannot select the year of payment. In all cases,
the payment schedule and the designated taxable year or payout period must be
objectively determinable and nondiscretionary when the payment event occurs. It
will normally not be possible to accelerate payments because of anti‑acceleration
provisions in the statute.

(c) Do
not overlook two special provisions dealing with methods of payment.

Two special distribution provisions are of
particular relevance to drafters of employment agreements. One deals with
reimbursements subject to code section 409A, and the other deals with amounts
payable to so-called specified employees following their separation from
service.

Reimbursements

An employer will often agree to reimburse an
employee for expenses, even after his or her termination of employment. Since
it is uncertain when an expense will be incurred, reimbursements not exempt
from code section 409A are deferred compensation. Special payment provisions in
the regulations permit reimbursements to satisfy the requirements of code
section 409A. Among other things, the reimbursement program must define the
expenses eligible for reimbursement in an objectively determinable and
nondiscretionary manner, and an eligible expense must be reimbursed before the
last day of the employee’s taxable year after that in which the expense is
incurred.

Specified key employee rule

Another special distribution provision impacts
key employees. Every plan of deferred compensation to which the provisions of
code section 409A apply must, by its terms, provide that distributions to
a so-called specified employee cannot be made before the date that is six
months after the employee’s separation from service, or, if earlier, the date
of the employee’s death. This provision must appear in the plan immediately
before an employee becomes a specified employee.

In general, a specified employee is one who,
when his or her separation from service occurs, is a key employee of an
employer whose stock is then publicly traded on an established securities
market. The statute imports the key employee definition from those code
provisions dealing with top-heavy retirement plans.

Guideline No. 7: Re-review the draft agreement to ensure
either that 409A does not apply or that all 409A requirements have been met.